Former Cape Town mayor Peter Marais has been cleared of making damaging homophobic statements by the Public Protector.
The former mayor and former Western Cape Premier was taken to Public Protector Mabedle Lawrence Mushwana by Andre du Plessis, who, according to the protector, ”claims to be gay” and represents gays and lesbians.
One of the comments Marais was alleged to have made was to an Afrikaans magazine, Insig, in which he said he would ”never push the Cape as a pink
tourism city.”
He was also alleged to have said that a group of gays within his erstwhile Democratic Alliance were plotting to remove him from office as mayor.
In a press statement the public protector said statements by Marais were said to be in breach of the rights to equality and dignity contained in the constitution and to have caused improper prejudice. They were also alleged to be in breach of Marais’ oath of office as premier.
The protector’s report — presented to the Speaker of the Western Cape provincial parliament Lynn Brown on Friday — noted that the complainant argued that the posts of mayor and premier were occupied as a public official and as a representative of a population with a wide range of views.
It was argued that holding of these posts should to some degree have limited his freedom of speech with regard to airing his personal views in public. It was argued that the oath of office of senior public representatives required them to uphold constitutional values.
The protector said it was not possible to find that Marais had made all the alleged statements precisely as claimed ”largely because it was not possible to conclusively verify the accuracy of the reportage of those statements.”
In one of the statements he was reported as saying that Christians must choose between the Bible and the constitution, as the latter was written by communists.
”Where he admitted making certain statements and adopting certain policy decisions, he was able to satisfactorily contextualise and justify them. It appeared furthermore that, where he had become aware of the possibility that an incorrect impression had been created by rapportage of certain of his statements, he showed that he had taken prompt corrective action.”
”It is therefore not possible to find that either the individual complainant or the gay community he claimed to represent had been improperly prejudiced.”
The protector noted that available case law suggested that generally it is permissible to express disagreement with constitutional standards.
The particular circumstances in this matter rendered it inappropriate to make a finding regarding the complaint that public representatives should be constrained in some way from making public statements on matters of conscience.
”The applicable legislation, primarily the South African Constitution and the Western Cape Provincial Constitution, the Executive Members’ Ethics Act and the Western Cape Members of Parliament Code of Conduct Act, does not deal directly with the issue.”
”The relevant legislation does afford a provincial legislature the power to set detailed standards of conduct relating to the conduct and performance of its provincial executive, including the Premier. The Public Protector has, consequently, in terms of the provisions of the Public Protector Act, referred this element of the complaint to the Western Cape Provincial Legislature for consideration.” – I-Net Bridge